MARY N. GURGANUS, Plaintiff,
CHARLES M. GURGANUS, Defendant.
in the Court of Appeals 25 August 2016.
by defendant from orders entered 3 September 2015 by Judge
William M. Cameron III in Onslow County 01 CVD 954 District
Sullivan & Tanner, P.A., by Mark E. Sullivan and Ashley
L. Oldham, for plaintiff-appellee.
Lea/Schultz Law Firm, P.C., by James W. Lea III and Paige E.
Inman, for defendant-appellant.
M. Gurganus ("defendant") appeals from summary
judgment orders entered in favor of Mary N. Gurganus
("plaintiff") concerning the termination of
alimony, plaintiff's share of defendant's military
retirement benefits, and maintenance of a Survivor Benefit
Plan ("SBP") to the benefit of plaintiff. For the
following reasons, we affirm.
Plaintiff and defendant were married on 1 April 1978. On 15
March 2001, plaintiff filed a complaint in Onslow County
District Court seeking a divorce from bed and board on
grounds of adultery, constructive abandonment, alcohol abuse,
and other indignities to render plaintiff's condition
intolerable and life burdensome. Along with the divorce from
bed and board, plaintiff sought alimony, custody of their
minor child, child support, possession of the marital
residence, attorneys fees, post separation support, and
May 2001, the trial court entered a temporary order requiring
"defendant . . . to pay to plaintiff as postseparation
and as support for the minor daughter, the sum of $3, 500.00
per month . . . ." The temporary order was entered
nunc pro tunc to the hearing date, 27 April 2001.
filed an answer and counterclaim on 29 May 2001, in which
defendant denied the allegations asserted as the bases of
plaintiff's claim for divorce from bed and board.
Defendant also asserted his own claims for a divorce from bed
and board and equitable distribution, while seeking to avoid
paying alimony and attorneys fees. Plaintiff submitted a
reply on 22 June 2001.
matter came on for hearing during the 10 September 2001 term
of Onslow County District Court. Judgment was entered on 5
April 2002, nunc pro tunc 10 September 2001. That
judgment granted plaintiff a divorce from bed and board from
defendant, ordered defendant to pay alimony to plaintiff, and
equitably distributed the marital property with an unequal
distribution to the benefit of plaintiff. As part of the
equitable distribution, plaintiff was to receive a percentage
of defendant's military retirement benefits, including
amounts to be paid under defendant's SBP. An additional
order concerning defendant's SBP coverage was entered
with the consent of the parties on 8 April 2003.
a 31 July 2003 hearing on the court's own Rule 60(a)
motion, an order was entered on 8 August 2003, nunc pro
tunc 31 July 2003, to correct a clerical mistake in the
5 April 2002 judgment.
later after defendant retired from the military, on 7 July
2014, defendant filed a motion in the cause asserting three
claims. First, defendant sought termination or reduction of
alimony because plaintiff would be receiving a percentage of
his military retirement benefits. Second, defendant sought a
declaratory judgment regarding use of the "Seifert
Formula" in the 5 April 2002 judgment to calculate
plaintiff's allotment of defendant's military
retirement benefits contending that plaintiff should not
benefit from his rise in the military ranks and the
corresponding increase in his retirement benefits that was
attained due to his active efforts post-separation. Third,
defendant sought to have the expense of the SBP assigned to
September 2014, defendant filed a motion to amend his motion
in the cause to add a fourth claim, that his active efforts
to rise in the military ranks and improve his income and
plaintiff's actions against him to impede his advancement
"constitutes a material and substantial change in
circumstances warranting a modification of the [judgment]
pursuant to the case of White v. White, 152 N.C.App.
588, 568 S.E.2d 283 ( N.C. Ct. App. 2002), aff'd, 579
S.E.2d 248 ( N.C. 2003)." Discovery then ensued.
April 2015, plaintiff filed a motion for summary judgment on
grounds that res judicata barred reconsideration of
plaintiff's share of defendant's retirement benefits
and defendant's SBP coverage. Plaintiff's summary
judgment motion came on for hearing in Onslow County District
Court before the Honorable William M. Cameron III on 19
August 2015. On 3 September 2015, the court entered three
separate orders granting summary judgment in favor of
plaintiff on each of the three claims asserted in
defendant's 7 July 2014 motion in the cause. The court
determined there was no basis in the law for granting
defendant's motion in the cause; therefore, plaintiff was